You cannot be risk averse

Miriam Weizenbaum, the new Chief of the Civil Division at the R.I. Attorney General’s Office, talks about the legal strategies she seeks to deploy to protect the state’s most vulnerable residents, particularly in a time of pandemic

Photo courtesy of the R.I. Attorney General's Office

Miriam Weizenbaum, the new Chief of the Civil Division at the R.I. Attorney General's Office.

By Richard Asinof

Posted 5/11/20

Why is this story important?

The message from the new head of the Civil Division at the R.I. Attorney General’s office is simple and direct: you cannot be risk averse in protecting the rights of vulnerable residents in a time of pandemic.

The questions that need to be asked

How will the municipal enforcement of laws protecting against childhood lead poisoning be accentuated by the willingness of the new Chief of the Civil Division to make that work a priority? Will the R.I. Attorney General’s Office consult with Sen. Josh Miller about the findings of his commission on insurance rate reimbursements and potential problems with parity laws? Will the gas, water and electric utilities in Rhode Island consider forgiving outstanding balances for services for the months of March and April as a result of the pandemic?

Under the radar screen

One of the undercurrents that has become visible as a result of the coronavirus pandemic is the way that it has made the health, social and economic disparities in Rhode Island more visible – and with it, the importance of developing community-based solutions focused on place-based health.
Rhode Island has been a leader around its work in creating Health Equity Zones in numerous communities across Rhode Island. One of the more significant developments has been the creation of data at the community level capturing needs assessments. The needs assessments data framework developed under the HEZ initiative were used in the development of the inaugural Rhode Island Life Index, sponsored by Blue Cross & Blue Shield of Rhode Island.
Collaborating is hard work, sharing of data is sometimes more difficult. The R.I. Department of Health has its hands full in coping with the coronavirus pandemic. The opportunity exists to create a “convergence,” a new avenue of community engagement and connectedness, by sharing the available data with Miriam Weizenbaum, the new Chief of the Civil Division at the R.I. General’s Office.

PROVIDENCE – Some stories have fallen off the news cliff when it comes to coverage amidst the urgent life and death struggles surrounding the coronavirus pandemic in Rhode Island, when all eyes, cameras and microphones have been focused on the rapidly evolving crisis at hand.

One such story – one that will have increasingly important ramifications in managing the legal disruptions caused by the pandemic – is the transition that occurred when Miriam Weizenbaum began her role on March 2 as the new Chief of the Civil Division in the R.I. Attorney General’s Office, succeeding Rebecca Partington, who had retired in February after 34 years of service.

Some two months earlier, in mid-January, when R.I. Attorney General Peter Neronha announced Weizenbaum’s appointment in a perfunctory news release, he had praised her abilities, saying: “I can’t think of anyone more suited than Miriam to take on the opportunities and challenges that our civil work brings.”

Neronha continued: “Her litigation experience, management experience, experience mentoring young attorneys and demonstrated commitment to social justice will help the Civil Division reach its maximum potential in the areas that matter most to Rhode Islanders.”

Further, Neronha framed the critical importance of Weizenbaum’s job, saying that she will be expanding the Office’s most critical role: “Serving as the people’s lawyer, protecting and advancing the interests of all our residents, particularly our most vulnerable.”

The news release had reeled off biographical details of Weizenbaum’s career. She had been a trial attorney in private practice in Rhode Island since 1995 at her firm, Deluca & Weizenbaum. Her work in civil litigation had concentrated in medial negligence and products liability. Her credentials exemplified a strong commitment to social justice, having been a founding member of the Rhode Island Center for Justice, which has partnered with community groups to protect the legal rights and to ensure justice for vulnerable individuals, families and communities.

Her educational credentials included: a B.A. degree from Simon’s Rock College in 1980, and a law degree from Temple University Beasley School of Law in 1986.

No one could have predicted how Weizenbaum’s new job and her skills as a legal advocate protecting the rights of Rhode Island’s most vulnerable resdients would emerge front-and-center in the ongoing legal wrangling caused by the pandemic.

Protecting the most vulnerableWhat it means to be protecting the rights of the most vulnerable in Rhode Island, in a disrupted world turned upside down by the coronavirus pandemic, has taken on a new urgency in a time when thousands have lost their jobs, when the ability to pay rent and utility bills and things such as student debt have been jeopardized, and when the risk of domestic violence has increased because of state orders to stay at home.

Weizenbaum explained in a recent phone interview with ConvergenceRI how the Attorney General’s office had become involved in a proactive manner regarding potential disputes over late payment of rents and evictions and, in particular, preventing so-called “self-help evictions.”

“You’ve got to have an awareness of both the existence of those problems and the magnitude of how people are being hurt,” she said. The “crackerjack” investigators with the Consumer Unit, she continued, serve as the landing pad for complaints of individual consumers, a valuable source to learn about what is happening on the ground.

The second part of the equation, Weizenbaum said, and “one of the reasons why I was really eager to take this job,” was the way in which Attorney General Neronha had expanded outreach efforts to the community.

Arming the police with knowledgeA third part of the equation, Weizenbaum continued, was to look at what laws already existed to protect people and “dust off those law books” to expand the legal toolkit.

“In the realm of evictions, because of our relationships with community groups, we learned that once the court was closed, there was something called 'self-help' evictions occurring, which was landlords saying: I can’t go to court to get an eviction, and I don’t want you there, so I’ll just throw you [and your belongings] out on the street and lock the door. But those [actions] are illegal,” Weizenbaum said.

Weizenbaum and her team went back and looked in the law books and asked: Isn’t this criminal? Isn’t it criminal for a landlord to go onto property that he or she leased to someone else? They concluded: it was an illegal trespass.

The next step was to let police officers know about the law, so that if somebody calls them to say that their landlord is illegally throwing them out, “the police are armed – figuratively – they have the knowledge so that they can tell the landlord, this is an illegal trespass, and you need to stop.”

As a result, Weizenbaum said, “We were able to proactively protect tenants, using relationships with the community, a creative use of the law, and a willingness to go out and be a leader. I think that is what we’re going to see in a bunch of different arenas in this crisis.”

Here is the ConvergenceRI interview with Miriam Weizenbaum, the new chief of the Civil Division at the R.I. Attorney General’s office, discussing her role in protecting the rights of Rhode Island’s most vulnerable residents.

ConvergenceRI: How did your educational experience attending Simon’s Rock, which admitted students at age 16, change your perspective about career choices in becoming a lawyer?WEIZENBAUM: It did so in a couple of ways. I wasn’t thinking at all about becoming a lawyer. There are no lawyers in my family.

One of the things about my educational experience at Simon’s Rock was that I got an education that introduced me to a wide swath of social sciences – and an understanding not only about the organization of U.S. society but also an analysis of that.

I think that helped me to become a lawyer. I also think the challenge of being out in the world at the age of 20, because you graduate at 20, helped me to figure out how to proceed at a young age.

ConvergenceRI: Did it also change the way you asked questions? One of the values of a liberal arts education, one where you are in a non-traditional educational system, is that you get to learn how to ask questions differently. Is that fair?WEIZENBAUM: Yes, I think that is true. And, part of what I learned from my education at Simon’s Rock was you cannot understand volumes of information and data of the magnitude that we see out in the world without [conducting] some kind of analysis.

You need to constantly test your analysis. To see your analysis as something that is constructed and not given. You need to ask yourself: what is the analysis I’m bringing, and how useful is it? I absolutely got that from Simon’s Rock.

ConvergenceRI: We are now in the midst of a pandemic. How has your role in leading the Civil Division changed as a result of the coronavirus pandemic?WEIZENBAUM: First, I came to the R.I. Attorney General’s Office, I started on March 2, so that I was here for about a week and half before the state of emergency was declared by the Governor.

So, I don’t have a lot of comparison. But, what I did think about was: What is the role of Chief of the Civil Division, given the pandemic?

In addition to maintaining the usual ship-of-state work that the Civil Division does as representing the state and its agencies, the thing that is different [is that] people are experiencing vulnerabilities in very particular ways.

I have hoped to make a contribution to helping people whose economic and social vulnerabilities are often invisible, assisting people who are often marginalized.

I think one thing that the pandemic has done has made those vulnerabilities far more visible. Which makes it, in some ways, easier for us in the Civil Division to identify the places [to intervene] where we can make a difference.

ConvergenceRI: In looking at the needs of vulnerable populations, have you seen the data on community needs assessments conducted by the Health Equity Zones in Rhode Island? They represent on-the-ground analyses of what is happening in the community in terms of health, economic and social disparities? Has that data been shared with you?WEIZENBAUM: No, I have not seen them. I wouldn’t say that it has not been shared. Maybe no one thought to send it. It’s not like it is being closely held; I wouldn’t draw that conclusion.

But I have not seen those. And, if analyses have been done and data has been collected since the pandemic through the lens of a Health Equity Zone, I think that would be of interest to this office.

ConvergenceRI: If you get a chance, you may want to talk with Jennifer Hawkins, she is the executive director of ONE Neighborhood Builders [the backbone agency of the HEZ for Central Providence]. I believe she recently conducted a survey about what her community needs are in the last month, so I would suggest that you could get in contact with her and ask her to share the past community needs analyses and data resources, too.WEIZENBAUM: That is very helpful.

ConvergenceRI: We are practicing “convergence.” Next question: What are the opportunities for increased civil enforcement of environmental law in Rhode Island?WEIZENBAUM: I think there are a few categories. One is, in an immediate way, I think this office can make a difference with lead enforcement [to prevent lead poisoning]. By that, I mean, lead in homes, participating in ameliorating that threat.

I think another area where there is room for increased enforcement is by looking at neighborhoods where air quality is more compromised. To your point about converging with health data, recognizing the health consequences of those environmental burdens.

We will be working with R.I. DEM to find the source of those [threats], and again, working to enforce standards that mitigate.

Another example is – I do not know whether I would call this an opportunity so much, but it is a reality – there are a lot of changes to environmental protection that are coming down from the federal government. We certainly have the responsibility to protect [Rhode Island] in the face of changes that significantly compromise our environment.

One example is in the realm of emission standards. For instance, California has higher standards, the feds had granted a waiver, so that California and other states could make those standards better. That has now been revoked [by the Trump administration]. The U.S. Environmental Protection Agency under this administration has pushed out standards that increase car emissions.

Another [area of concern] are emissions from power plants. The U.S. Supreme Court had issued a decision saying that the EPA can regulate greenhouse gas emissions if they constitute endangerment. A lot of work was put into accomplishing that, moving out that law, but that has significantly rolled back under the current administration, and [I believe] we need to participate with other states in fighting that.

The [legal definition of] “waters of the United States” is another area that will affect Rhode Island significantly. Where we need to work to defend a definition of “waters of the United States” that protects, for example, transient streams that emerge and disappear, depending on seasons. And, we have a robust environmental unit to do that work.

ConvergenceRI: Are you going to be ramping up to hire more people to work on environmental law?WEIZENBAUM: I don’t see there being an influx of money to any state division or agency. What we need to do is to figure out how to find capacity among the people we already have here, and to use it in a way that will best protect Rhode Islanders.

I think we can do that. It is not something where you can snap your fingers, but I absolutely think we can do it.

ConvergenceRI: Years ago, when I worked in Washington, D.C., as editor of Environmental Action magazine, I interviewed an assistant district attorney in Philadelphia who was in charge of prosecuting toxic crooks, and he was using existing statutes to prosecute illegal waste dumpers, such as “reckless endangerment,” that proved to be successful in his prosecutions of toxic waste dumpers.

Is being able to use the law creatively in that manner a strategy you will consider pursuing? And are you willing to go after not just the corporations [and finding them], but also holding the CEOs accountable?WEIZENBAUM: I say yes to the first part of your question, being creative. I went to law school in Philadelphia and I worked there for a number of years before coming to Rhode Island. I would say coming up in the law in Philadelphia gave me an experience of being in a cutting-edge legal community, including environmental work and civil rights work.

A lot of that work was – and is – dusting off the law books, and finding laws that protect people that perhaps nobody knew about.

Having done litigation for 25 years, one of the questions [I always ask] is: What is the best litigation strategy? By that I mean, what are our goals we want to accomplish.

Obviously, one goal is to accomplish recovery to make up for harm [done]. Another goal is to shine a light on practices that let other possible wrongdoers know that there is accountability. Whether that means going after CEOs [needs to done] on a case-by-case basis.

Because as different and exciting as something can sound, if it doesn’t advance the reason you are doing the case, then it doesn’t belong there. And so, [decisions need to be made] on a case-by-case basis.

ConvergenceRI: How involved are you with negotiations regarding potential settlements of lawsuits against the drug manufacturers and distributors as part of ongoing litigation with the opioid epidemic? What do you see as potential remedies?WEIZENBAUM: I think the potential remedy is going to have a great deal to do with money. This crisis is, in some ways, silent. But, in every way, it is all around us.

The initial proposed settlement with Purdue Pharma was something that we couldn’t agree to, because it didn’t give enough [money] to Rhode Island.

Rhode Island is small. We are not going to see big numbers eventually. You’ve probably heard about big numbers, but even though we are small, Rhode Island has taken an enormous hit on a per capita basis.

Another reason [we couldn’t agree with the proposed settlement offered by Purdue Pharma] was that we needed to push for more information not only about Purdue but also about the Sackler family, the private owners. To your point, earlier, about going after CEOs [and holding them accountable], I think remedies have everything to do with the money. And then, making “smart” decisions about how best to use settlement monies on a going-forward basis.

In order for us make sure that Rhode Island is able to get as close as we can to true remediation, we need to get more information from Purdue Pharma, the other companies involved, such as the distributors, and the Sackler family.

ConvergenceRI: What questions haven’t I asked that I should have asked, that you would like to talk about?WEIZENBAUM: What I want to impress on [your readers] is the role that this office can play again, protecting people who are vulnerable, enforcing the rights that people have.

Part of the role of this office is to go through that process that I described: Looking at what the needs are and developing creative legal toolkits to protect the rights of residents. It takes a willingness to do that work. You can’t be risk averse. An effort that fails may be [seen as] the first effort to change the circumstances. You give it your best shot.